D2007/118, Transcript of Proceedings [2008] AIRCTrans 245 (26 May 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18533-1

SENIOR DEPUTY PRESIDENT HAMBERGER

D2007/118

s.18(a) RAO Schedule - Application for registration by an ass’n of employers
Application/Notification by The Australian Furniture Removers Association Incorporated
(D2007/118)

SYDNEY

10.08AM, TUESDAY, 08 APRIL 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: It's probably best if everyone stays seated, it's probably better for the camera so everyone can see each other, so I won't take offence if you stay seated.

PN2

MR P ROCHFORD: I appear on behalf of the Australian Furniture Association Incorporated. With me is MR V HANLEY. Mr Hanley is one of the authorised persons in respect of the application. And MS S BARWICK.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. And in Melbourne?

PN4

MR B JOHNSON: I appear on behalf of the Transport Workers Union of Australia.

PN5

MR P RYAN: I seek leave to appear for the Australian Road Transport Industrial Organisation.

PN6

THE SENIOR DEPUTY PRESIDENT: Okay, there's no objections to leave being granted. Leave is granted Mr Ryan.

PN7

MR RYAN: Thank you.

PN8

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, do you want to - I mean, we're here really just to deal with the issues of programming, but have you got anything you want to say at the outset?

PN9

MR ROCHFORT: Just a couple sir if I may. The application in our view is one which has been made consistently and with the requirements of the legislation. I'm aware that the Registry has raised an issue or two about it, which is something of a surprise considering that it was done right from the union's perception in discussion with the Registry. However, I'm in a position to deal with that. I understand that one of the complaints by the Registry is the concern that the application has not been made according to the rules of the organisation. Of course the rules don't require the actual lodging. The rules of the Commission only - - -

PN10

THE SENIOR DEPUTY PRESIDENT: Can I just stop you there Mr Rochfort? On my own analysis there is a threshold issue which I suspect is the same issue that's been raised with you previously by the Registry, which is that the - and I just want to confirm this - the rules that were submitted with the application, am I correct in believing that they're not the current rules of the association, they are rules that it is proposed would take effect upon registration, is that correct?

PN11

MR ROCHFORT: That's correct, sir.

PN12

THE SENIOR DEPUTY PRESIDENT: So we haven't seen - what I think that means in practice is we haven't actually seen the rules. The current rules of the association have not been included with the application, is that correct?

PN13

MR ROCHFORT: They have not. They're substantially the same, but to answer your question - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Because if you look at the Act, at least, I mean, I have an open mind, but on a prima facie reading the - I'm just trying to find the provision - there is a requirement that the rules of the association, ie, which applies before the body's been registered, make provision as required by this schedule to be made by the rules or organisations. And indeed the Commission also has to be satisfied I think that you have actually made the application in conformity with the rules of the association, rules which we haven't seen.

PN15

Now, I haven't got a formed view on this question but I was thinking whether it might be preference - well, there's three options. One is that you actually withdraw the application and start again by actually revising the rules of the association to bring them into line with the rules that are required by the Act. And you mentioned that there's not a great deal of difference, however obviously that would require, you know, a meeting I imagine of the association and so on. Now, that's one option, so you withdraw the application as it is and start again.

PN16

A second option is we deal with this issue as a threshold matter and you can seek to persuade me if you like that there's not a problem and we can just proceed to deal with the application on the assumption that the rules that you've submitted with your application can be treated as the rules that are referred to in the Act that need to be in conformity with the Act. The third option is that you just make your submissions on all the matters that are required to be met to deal with the, you know, the requirements of registration, and I hear obviously the submissions of the objectors, and I'll just issue a decision based on all that.

PN17

So if you like there are three options I'm giving to you. They come off, you know, off the top of my head if you like as to how to proceed. I wonder if you've got any views as to which of those options you would prefer to go with?

PN18

MR ROCHFORT: I think, well, two and three as I see it, your Honour, with respect, are not all together.

PN19

THE SENIOR DEPUTY PRESIDENT: Sorry, I'll just clarify that then if that's how you feel. There is an argument, and I won't put it any higher than that, that you have a problem in that the rules you have submitted with your application are not the rules of the association as they currently stand, they are the rules of the association as they would apply if the association was registered by the Commission. There is an argument that you can't do that, that the rules of the association have to comply with the requirements of the Act, and you have to tender those with your application. I'm just saying it's an argument.

PN20

What I'm saying is that if you can't overcome that problem, if I find that, you know, you actually do have to change your rules first, the rules of the association have to be changed first before you can actually be registered as opposed to having the rules come into effect after registration or upon registration, then perhaps it might be a more efficient use of time to deal with that issue as a threshold matter, you put your submissions on that, I get submissions if there are any from the objectors on that one issue, and we deal with that discretely and I issue on that.

PN21

If the decision is it's not a problem then we can then proceed to deal with all the other matters and I'll hear submissions from you and from the objectors, or we can deal with your submissions on all the aspects to deal with registration and I'll hear all the submissions from the objectors and all the different issues that they might want to raise. But you need to be aware that if I find that that is an insuperable problem, that you're going to put in all these arguments and it's going to get, you know - I've got nothing in mind, I'm not saying this is the outcome, I'm not prejudging it, but I'm just saying that procedurally, you know, if it's found that you can't make an application in the way you are, then all the rest of it is going to be a waste of time, I'm not going to be able to deal with the rest of the argument.

PN22

It is essentially a threshold issue. So I suppose what I'm getting at is, my preference would be that I'm open to views of the parties here. My preference would be to deal with it as a separate threshold matter and then depending on what the outcome is we then proceed to deal with the other issues. But there is a difference between them. Do you understand what I'm proposing as to - - -

PN23

MR ROCHFORT: I think, your Honour, that with respect to what you say that it's best to deal with the threshold issue.

PN24

THE SENIOR DEPUTY PRESIDENT: Okay.

PN25

MR ROCHFORT: We're fairly confident that nowhere in the Act does it say that the rules under which the application is made must be tendered with the application. It makes sense, good sense in our view, that the rules are those which would apply in the event that the application is granted.

PN26

THE SENIOR DEPUTY PRESIDENT: No, we I don't think we'll deal with the arguments at this stage, but your preference is to deal with it as a threshold issue?

PN27

MR ROCHFORT: And put up the rules as a matter of evidence.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well, can I ask Mr Johnson what's your - just on this procedural issue, you appreciate the point I'm making about how to deal with this matter I assume?

PN29

MR JOHNSON: Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: Have you got a view on how you would prefer us to proceed?

PN31

MR JOHNSON: Yes, your Honour, I think that your approach is the correct one. I think that this is a threshold issue that would certainly be a drain on the resources of the Commission and the other parties involved if the matter were to be run comprehensively only to be failing in terms of its prosecution by failure of the applicant to properly comply with the rules of the Act. We submit that the proper approach would be either for the applicant to withdraw its application, which I think is probably the best course open to it, and if it sees fit to file a fresh application, alternatively I think the only other course that's genuinely open is for this issue to be resolved as a preliminary issue before any other matters are entered into. If it pleases the Commission.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ryan?

PN33

MR RYAN: Thank you, your Honour. ARTIOs view is quite clear. RAO regulation 21(1) states that an application for registration must be lodged with (v) the rules of the association. If what has been lodged is not the rules of the association then this matter can't move forward. Secondly, our objections are based on the rules that appeared in the gazette notice. If an attempt is made by the Australian Furniture Removers Association then to supplant those rules with another set of rules we've had no opportunity to consider those rules in terms of the processes required to be applied by the Act. This is very clearly a threshold issue and must be dealt with accordingly in my submission, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Okay, thanks. Well, Mr Rochfort, I think the consensus seems to be, assuming you're not - you don't sound like you want to withdraw the application at this point.

PN35

MR ROCHFORT: Well, I don't think that would be appropriate.

PN36

THE SENIOR DEPUTY PRESIDENT: No, that's your prerogative. But I think if you're not going to do that then I think we should deal with this as a threshold issue. Now, there's two ways - again there's sort of two ways of dealing with this. One is that you - look, my preference would be in a way is, that you having determined this is the way - given that this hearing was only for programming I don't want to put you at a disadvantage and expect you to put your submissions on this point now, even though you might be itching to do it. I mean, you can if you really want to. But my preference would be that you actually make, well, written submissions on this matter, on this threshold issue, and I get written submissions from the - so, you know, you have a period of time, have a week, two weeks, whatever you feel you need to do written submissions on this issue of whether the rules need to be the current rules of the association and that those are the rules that need to conform with the requirements of the Act, or whether you can follow the procedure that you've outlined which is that you actually have rules that are adopted at the point at which the association becomes an organisation because it's registered.

PN37

And then obviously you put your submissions, I get submissions from the objectors, and then I'll give you an opportunity to respond to those. Whether we'd need a hearing on this, another hearing, I'm open minded on. Probably not because it's not really a question of evidence as such.

PN38

MR ROCHFORT: Except in the sense that I would see that the rules under which the application went forward were the rules as they existed at the time, and that's a matter of evidence.

PN39

THE SENIOR DEPUTY PRESIDENT: Right, okay. So, I mean, you could make - or we can do this all in a hearing. I mean, I don't know if you like - I mean, I tend to like written submissions, but not everyone's all that keen on them.

PN40

MR ROCHFORT: Well, I agree with Mr Johnson that it would be - there's a number of other issues that could be canvassed in the course of a hearing, and it would be a waste of everyone's time and effort if we to all those only to find that we failed at the first hurdle.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, that's right. But assuming that we're going to deal with this, having decided really that we're going to deal with this issue as a threshold issue as an issue on its own before we deal with the other issues, what I'm just flagging is, have you got any preference for how to actually deal with that one issue in terms of timing and procedure?

PN42

MR RYAN: Your Honour, may I say something?

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ryan?

PN44

MR RYAN: My view would be that this can be a somewhat technical issue, and I would consider that it would be appropriate for AFRA to put written submissions within a timeline determined, then the objectors have an opportunity to answer those submissions, and if out of that AFRA need to put something further or an oral hearing is appropriate then that can be scheduled. But to me that seems - because we're dealing with technical stuff here.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR RYAN: And it will be necessary I think for all of us to go and dust some of the - get some of the dust off the books to have a look at earlier decisions on this type of issue. And I think that's best done in a written format.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I must say that's probably my inclination. I mean, what we could do is give you a period of time to make written submissions on this point, then obviously have submissions from the objectors, and then give you an opportunity to respond to those submissions. And then I can decide really whether I need to have a further hearing or whether I can actually issue a decision on the point then. Do you have a problem with that?

PN48

MR ROCHFORT: No. I think that's the preferable course.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, how long would you want to make your written submissions just on this point?

PN50

MR ROCHFORT: Just on this point?

PN51

THE SENIOR DEPUTY PRESIDENT: Just on this technical point.

PN52

MR ROCHFORT: Two weeks.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, I think that would probably be appropriate, okay.

PN54

MR ROCHFORT: I have another matter that I wish to raise. I think I may have foreshadowed that with your associate. And that is I object to two of the objections and would ask the Commission to strike them out, they being the objections of ARTIO and of VECCI. Now, dealing with VECCI first, the same issues arises. But VECCI is not here today. It demonstrates this inclination to prosecute the matter. I mean, that in itself constitutes a reason to have the objection dismissed and thereby simplifying the whole process.

PN55

THE SENIOR DEPUTY PRESIDENT: Right.

PN56

MR ROCHFORT: In relation to the objections both of ARTIO and VECCI, your Honour has probably observed that they are in very similar forms. Someone's been plagiarising someone else. However, the provisions regarding the lodging of objections are that the notice of objection must - now, I'll miss out on the relevant parts - comply with the requirements of Regulation 14. Now, Regulation 14 sets out the contents of notices of objections lodged in the industrial registry. A notice of objection lodged in the industrial registry again must, and then (d) briefly state the facts the objector relies on for each objection.

PN57

Neither the application of ARTIO nor that of VECCI state any facts, briefly or otherwise. They haven't complied with the regulations, and I ask your Honour to dismiss both objections. And of course the Transport Workers Union in my opinion have complied and the objection can be validly dealt with.

PN58

THE SENIOR DEPUTY PRESIDENT: Okay. Well, we don't have VECCI here, but, Mr Ryan, have you got anything to say about that?

PN59

MR RYAN: Our objection complies with the regulations, it complies with the form required by the Australian Industrial Relations Registry, Australian Industrial Registry to Form R72. It sets out very clear on what basis the objections are made, it sets out very clearly the facts involved in those particular matters, and it sets out in a summary form the arguments that will be put which has been standard in this Commission for the last 100 years surrounding any objection to a notice of application for registration of an organiser, whether it be an employer one or an employee one. It spells it out very plainly and very clearly and it complies with all relevant regulations and, as I said, is in accordance with the standard and protocols used in this Commission, your Honour.

PN60

I did receive a telephone call from Bob Ironmonger from VECCI yesterday indicating that he was unable to attend today because he's in Adelaide and, my understanding, he was going to correspond with you or your associate to advise you of that, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, I was advised that he wouldn't be here. Mr Rochfort, on what basis do you say that there were no facts?

PN62

MR ROCHFORT: Well, there are no facts.

PN63

THE SENIOR DEPUTY PRESIDENT: Well, they're very broad.

PN64

MR ROCHFORT: I don't know whether Mr Ryan is reading from the same book of regulations that I'm reading from, but there are a number of things that must be stated in the objection, (a) the name and address of the organisation, fine; the grounds of the objection, fine; the particulars of each ground of objection, fine; but where are the facts? The particulars obviously are distinguishable from the facts. I mean, compare Mr Ryan's application and that of Mr Ironmonger whose position we don't know, he's not here to tell us. And he comes from a large organisation, you would think he'd get someone else here if he was sufficiently interested. However neither of them set out the facts supporting the particulars.

PN65

THE SENIOR DEPUTY PRESIDENT: Well, Mr Ryan, do you have anything to say about that? You can just point to me if you like facts that you seek to rely on.

PN66

MR RYAN: I'm unclear as to what facts have been omitted. I mean, we
have - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Well, just point to some facts that are seeking to rely on.

PN68

MR RYAN: The eligibility rules of the applicant association include terms that are inappropriate as eligibility rules. The registration - the rules - I mean, each of the particulars, the grounds on which this objection is made are follows. The application is invalid, and we've already touched on that particular ground. I mean, and then it goes into why the application is invalid, because the rules of the applicant association are not the true and valid rules of the association.

PN69

THE SENIOR DEPUTY PRESIDENT: Look, Mr Rochfort, I'm not willing to exclude the objections on the grounds that you've put. I believe they're made in accordance with the Act. So, I mean, just the examples that Mr Ryan gave there, and VECCI, even though they're not here, I think the same would apply to them.

PN70

MR ROCHFORT: Well, you can't assume that, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: No. I've got their objection here. I don't need to hear their argument. I think they do have purported facts. I don't think it means that one has to agree with the facts as they present them, but there are facts upon which they seek to rely. This is a pretty broad standardised formula really for objections so, Mr Rochfort, I'm really not willing to accede to your motion.

PN72

MR ROCHFORT: Can I ask your Honour to refer to the application of the TWU?

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. But people may have different forms, different styles of how they twist that up. Yes, okay. Look, to be honest, Mr Rochfort, I've just made a ruling on this. I don't really propose to re-open it. Sorry, I appreciate there's a lot more detail in the TWU objection, but I think there's enough to make - - -

PN74

MR ROCHFORT: Well, my concern is that I have written to each of the organisations. Mr Ryan and I had a meeting in relation to his objection in which a proposal was discussed which I then raised at a meeting and wrote to Mr Ryan, as I've written to Mr Johnson and to Bob Ironmonger, and haven't heard a reply. Now, that would have elicited some facts. See, the problem I've got is, without knowing their facts I don't know how to go about my argument.

PN75

THE SENIOR DEPUTY PRESIDENT: No, I appreciate that may - well, they have presented arguments, they have presented purported facts and they're in broad terms. Obviously you will have an opportunity to not only put your submissions but also I'll give you an opportunity to respond to any submissions they make, so you won't be in a position where you'll be not knowing what their arguments are before you - you will certainly have an opportunity to respond to their arguments. I wouldn't leave you in a position where that wasn't the case.

PN76

I think probably we should just go back to dealing with this - setting a timetable for dealing with this threshold issue. In terms of timetable, today is the 8th, so if we give you till the - so if Mr Rochfort has until 22 April to make written submissions, and then that takes us to 6 May for submissions in reply, and then a further week would be normal, 13 May for submissions in reply from Mr Rochfort. Are we quite clear on what the threshold issue is? It is this issue that the rules that form part of the application appear not to be the rules of the association as they currently are. They are rules that is proposed would come into effect if and when the association is registered.

PN77

The question really is whether that process satisfies the requirements of the Act. So if for some reason I determine that having received written submissions there's a need for a hearing as opposed to just issuing a submission based on written submissions, I will obviously contact the parties and we'll organise that. But I think Mr Ryan made the point, we're essentially talking about a fairly technical issue about the way to construct the Act, and I suspect it's probably done just as well - - -

PN78

MR RYAN: Your Honour, can I make a suggestion?

PN79

THE SENIOR DEPUTY PRESIDENT: Yes.

PN80

MR RYAN: In terms of proceeding on this technical issue it may well be prudent for you to issue a direction with your timetable and say you want written submissions on this particular question and spell it out in black and white so there can be - - -

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, I'll issue written directions so there's no doubt about it.

PN82

MR RYAN: So there can be no misunderstanding as to what we're dealing with here, your Honour.

PN83

MR JOHNSON: Your Honour, I might make an additional point just in terms of procedure. I believe that there were two objections raised by Mr Rochfort in relation to VECCI and ARTIO. I know that your Honour ruled in relation to the content of the applications of both organisations not containing the facts, but I'm not sure whether your Honour ruled on the issue of the non attendance by VECCI providing grounds for their application to be struck out. That may be prudent to deal with that now.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes. Look, obviously I'm aware that VECCI aren't here. VECCI had already advised me they wouldn't be here beforehand and essentially indicated their position would be similar to ARTIOs. I don't see their non attendance here - they will be given an opportunity to make submissions on this point as well given that they've lodged an objection. Yes, I certainly don't see any - I do not propose to not allow their status as an objector on the basis they weren't here this morning.

PN85

MR ROCHFORT: The mind boggles as to how their position can be the same as that of ARTIO.

PN86

THE SENIOR DEPUTY PRESIDENT: Okay. Well, we're only here for programming. The actual issues of substance will be dealt with in the submissions. We shall see what they have to say. Is there anything anyone wishes to add at this point? But I will issue written directions just to be clear.

PN87

MR RYAN: Just as a final point, your Honour. The facts are really set out in the application lodged by the Australian Furniture Removers Association, and our documents respond to the facts that were set out there because they're the issues that have to be confronted, and one of those facts is that, as Mr Rochfort admitted on transcript at the start of this, is that the rules lodged are not those of the rules of the association so, you know, that's a fact. How you put that forward in a document is reacting to the work that they'd already prepared. So I'd leave it at that, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well, we shall adjourn and I'll issue written directions.

<ADJOURNED INDEFINITELY [10.37AM]